The abortion cases that could force El Salvador to loosen its ban
Appeal of Salvadoran woman’s 30-year sentence for suspected abortion comes amid ‘green wave’ of decriminalisation in Latin America.
San Salvador, El Salvador – Lawyers are fighting for the release of one of the dozens of women imprisoned for abortion-related crimes in El Salvador in a case that could signal if the country will be swept up by the region’s “green wave” of abortion decriminalisation.
Sara, a Salvadoran woman identified only by her first name to protect her identity, had a miscarriage in 2012 at the age of 22 when she slipped and fell washing laundry. She was sentenced to 30 years in prison for aggravated homicide but has maintained her innocence.
Her appeal was scheduled for March 15 but was postponed because of a technical issue with the virtual hearing that has yet to be resolved. A new court date has not yet been set.
Sara is one of the dozens of women currently behind bars for abortion-related crimes in El Salvador, which banned abortion in all circumstances in 1998. Women’s rights groups say most of these women come from poor, rural areas and experienced obstetric emergencies, not abortions.
The United Nations has repeatedly denounced El Salvador’s criminalisation of women suspected of abortion, including in a 2020 report that called for the end of arbitrary detention of three women, including Sara.
“If El Salvador is really serious about its international obligations to human rights, this is an opportunity to free Sarita,” said Paula Avila-Guillen, a lawyer consulting for Sara’s legal team as executive director of Women’s Equality Center, a US-based organisation that supports feminist organising in Latin America.
The abortion-related convictions violate due process, Avila-Guillen told Al Jazeera, and due to “the stigma around these cases, these women have to proactively prove their innocence”.
In an upcoming hearing, lawyers are expected to present new evidence from forensic experts that they say demonstrates that Sara’s miscarriage was natural and that previous testimony was prejudiced.
“Our hope is that the judge, after hearing this evidence, will determine that it changes the outcome of the case and that Sara is innocent,” said Avila-Guillen.
If released, Sara would join at least 15 other women who have been let out of prison since 2018 through appeals, retrials and commutations of their sentences.
This month, the Inter-American Court for Human Rights also heard arguments in a case that could force El Salvador to recognise that its policy has violated the human rights of dozens of women imprisoned for abortion-related crimes.
The women’s rights groups that filed the case accuse the Salvadoran state of violating the right to life and health of Manuela, a woman who was sentenced to 30 years in prison in 2008 after suffering complications during childbirth.
Manuela, identified by a pseudonym to protect her family, died of cancer in 2010 while imprisoned. Women’s rights groups say she did not receive adequate medical care prior to her death.
The case seeks reparations for Manuela’s parents and sons, who live in poverty in a rural area of El Salvador and have suffered emotionally because of Manuela’s imprisonment and untimely death. Manuela’s two sons were seven and nine when she was convicted.
In a call with the press before the hearings on March 10 and 11, Manuela’s son Santos, now 21, asked the Salvadoran authorities to consider the harm on children when they prosecute women in these cases.
“I don’t want this to happen again because as a child, you suffer,” said Santos. He said his mother’s conviction left him and his brother orphans. “We’ve had my grandmother but it’s not the same. We don’t have the love of our mother.”
The case, which will be decided within a year, could also have implications that extend beyond Manuela’s family.
“We hope that this case opens the door so that these situations don’t happen again and no other woman has to go through this,” Catalina Martinez Coral, regional director for Latin America and the Caribbean at the Center for Reproductive Rights, one of the groups that filed the case, said during the news conference.
Past attempts to decriminalise abortion in El Salvador have been unsuccessful, including two proposals in 2018 to allow abortion under certain exceptions that legislators failed to bring to a vote for fear of backlash from religious conservatives.
In El Salvador, Catholic and evangelical pro-life groups often coordinate protests and social media campaigns against efforts to liberalise the country’s abortion ban. They argue the victims in these cases are the unborn foetuses, rather than the imprisoned women or their families.
But women’s rights activists in the country hope the tides are shifting.
An historic December decision by legislators in Argentina to legalise abortion through the 14th week of pregnancy without restrictions energised women’s rights activists throughout the region.
El Salvador’s Vice President Felix Ulloa recently said in an interview with Univision anchor Jorge Ramos that legislators are reviewing the total abortion ban as part of a larger effort to reform the constitution, which currently enshrines the right to life starting at conception.
President Nayib Bukele has previously said he believes no woman should be imprisoned for an obstetric emergency. His New Ideas (Nuevas Ideas) party won a majority of seats in Congress in February elections, although a party-wide stance on legalising abortion is unclear.
Bukele’s office did not respond to Al Jazeera’s request for comment.
Feminist activists in El Salvador say they will continue to pressure legislators to loosen the abortion ban when the new legislators take office in May. In the meantime, they are trying to help Sara and the dozens of women who have been criminalised and imprisoned for abortions.
“It’s not a problem of what colour the party flag is in each seat. It’s a problem of public responsibility,” said Salvadoran feminist activist Morena Herrera. “It’s been clearly shown that the total prohibition of abortion harms Salvadoran society.”